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Nothing is more suggestive when reflecting on the effect which our national intellectual limitations, not to say prejudices, have upon our common fortunes, than to mark the difference between our methods and the methods of other peoples whose handling of administrative problems has, on the whole, been more successful, if not more intelligent, than our own. I suppose, that, among nations which are at all of the deliberative type, the German is admitted by common consent to have the most perfect administrative system. But the Germans, I suspect, approach more nearly than most others to the Roman model, and have correspondingly limited legislative interference.

Perhaps any reference to Germany, in this connection, might be resented in America on the ground that German methods are based on a despotic and military tradition repugnant to us. Conceding, for the sake of argument, this objection to be well taken, it cannot apply to Great Britain, the oldest of deliberative governments, and our own mother. Now although English administration, especially military administraton, has not always been pre-eminent, the English have achieved considerable administrative successes not only in India but at home, and the English, like the Germans, have pretty sharply excluded the legislature from meddling with administration. They have done this by means of, what is equivalent to, a system of referendum.

The United Kingdom is absolutely governed by a legislative assembly consisting of King, Lords and Commons, it is true, but, for administrative purposes, Parliament selects a committee of its own members, to serve as an executive cabinet. This cabinet formulates a cohesive policy embodied in bills, which it presents to Parliament, and which Parliament debates, under restrictions; but if the cabinet be defeated upon any important issue raised by these bills, the cabinet, usually, dissolves the House of Commons, and thus secures a popular vote upon its policy in its entirety. This amounts to a referendum, and by

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that referendum the cabinet stands or falls. Thus the legislature is, from the standpoint of the administrator, muzzled, and to this muzzling is probably due such administrative success as England has attained.

If now we recur to those popular phenomena about us which are generated by our administrative embarrassments, I hardly see how we can fail to be impressed by the apparently instinctive appreciation which our people seem to have of their vital importance. For, however crude the expedient may be in its present phase, I conceive that the referendum is only an effort made by the people to limit the functions of the legislature pretty much in the sense which I have suggested, if not even more strictly.

The obvious object of the referendum is to erect an executive department which shall formulate policies to be submitted in their entirety to the people, without the intervention of any legislative body. This was the principle of the Roman administrative system, save that the Roman Emperor promulgated his decrees without the formality of a popular vote.

If public opinion did not, on the whole, justify the emperor, means were found to remove him, and his successor corrected his error. I apprehend that this essential principle of the referendum underlies all effective administration, for to administer effectively and cheaply there must be unity and sequence in conception, combined with unity and continuity in execution.

To so adjust our government that it would be competent to administer upon the scale we have been considering, would involve some expansion in our political and legal conceptions, but however large this expansion might be, it would be trivial beside the material expansion of American society since Marshall took his seat upon the bench in 1801. Whether we like it or not, this material transformation must be reflected in our institutions and our laws, as every such movement has been since history began; all that is

permitted to us is to determine in some small degree whether these changes shall be benign, or whether they shall come with confiscations and bloodshed, as they have so often come in the past.

I am only too well aware of the fallacies which may lurk in my argument; something, nevertheless, I may hope to accomplish. I may stimulate thought, and to that end I make this final suggestion. In the year 1789 the United States was peopled by a nearly homogeneous race of landowning farmers, thinly scattered over a vast region, in which the cities were few and small and the diversities in wealth narrow. The social movement was slow and the social inequalities relatively insignificant.

The United States of the year 1914 presents a condition nearly the converse of this. American society is now a vast, complex organism, densely crowded into enormous. polyglot cities, in which the English element is steadily losing its preponderance. This society is moving with intense and accelerating velocity; it contains the extremes of wealth and poverty, which extremes invariably breed social inequality, and therefore generate rancorous class antagonisms. Given such conditions, I submit that it is not unreasonable to infer that unless the law can be made to weld this incoherent mass together, by substituting common property interests for those hostile interests which now prevail, the sporadic social warfare waged about us between capital and labor may presently lapse into chaos, as it has lapsed into chaos, under our eyes, in Mexico.

Wherefore I would beg you to consider, if my premises should chance to contain any fragment of truth, whether it be not the duty of the lawyer in the immediate future to cast aside personal preventions and endeavor to examine these perplexing social phenomena surging about us, as coldly and calmly as mathematicians might examine physical phenomena, even supposing those mathematicians to be men upon whom their calling imposed the task of cal

culating the path of least resistance for a mighty body moving swiftly amidst obstacles, and supposing, also, that moving body to be one for whose safety their profession fixed upon them a responsibility peculiarly their own.

BOSTON, MASS.

BROOKS ADAMS.

TOLSTOY'S DOCTRINE OF LAW.

I.

An important subject of which Tolstoy very often treats in his social writings is law. His doctrine of law greatly differs from the teaching of Plato,' Aristotle, Montesquieu, Grotius,' Hobbes," and of modern jurists as Bentham, Austin, Jellinek, Jhering, and Kohler.10 He recognizes only divine or eternal laws, but not the human. "The human or the written laws are not just; they are capricious and artificial; Jesus Christ nullifies them, and confirms only the eternal laws."" Recognizing the eternal or natural laws Tolstoy does not acknowledge the canonical, because these are false, full of contradictions and sophisms, just as the secular laws are. By eternal laws he

means laws written in the hearts of men, not prescribed by any authority, sovereign, or legislature. "Since all men are brothers and equal among themselves, everybody must act toward others as he wishes that others should toward him. ''12 In that case the written laws are not necessary. This may be true. But if people do not think they are brothers, and equal, and if they are really homo homini

1 Laws. The Dialogues of Plato, English, by B. Jowett, Vol. V, London, 1892.

2 Aristotle's Politics, books I-IV, English, by B. Jowett, Oxford, 1908.

3 De L'Esprit des Lois, English, by T. Nugent, London, 1905-6.

4 De Jure Belli ac Pacis, English, by A. C. Campbell, London, 1901.

5 Leviathan, The English Works of T. Hobbes, Vol. III, London, 1839. 6 The Works of J. Bentham, Vol. I, II, Edinburgh, 1843.

7 Lectures on Jurisprudence, New York, 1875.

8 Das Recht des Modernen Staates, Berlin, 1905.

9 Der Kampf um's Recht, Wien, 1900; Der Zweck im Recht, Leipzig, 1893-98.

10 Einfuehrung in die Rechtswissenschaft, Leipzig, 1905.

11 My Religion, chap. V. (Wiener's ed., p. 49.)

12 What is Religion? chap. XI. (Wiener's ed., p. 106.)

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